Kekatos v The Council of the Law Society of New South Wales - [1999] NSWCA 288

No judgment structure available for this case.

CITATION: Kekatos v The Council of the Law Society of New South Wales [1999] NSWCA 288

FILE NUMBER(S): CA 40755/98

HEARING DATE(S): 11 May 1999

JUDGMENT DATE:
26 August 1999

PARTIES :

Appellant - George Kekatos
Respondent - The Council of the Law Society of New South Wales

JUDGMENT OF: Handley JA at 1; Powell JA at 2; Giles JA at 7

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S) : CLD 10305/97

LOWER COURT JUDICIAL OFFICER: McInerney J

COUNSEL: Appellant - G A Palmer QC & A C Casselden
Respondent - L P Robberds QC & I M Khan

SOLICITORS: Appellant - Smits Leslie, Gordon
Respondent - Garry J Still, Law Society of NSW

CATCHWORDS: SOLICITORS - not holding practising certificate - holding out to be solicitor and acting as solicitor - contraventions of Pt 3A Legal Profession Act 1987 - whether because of interventions in hearing and findings and reasons trial was unfair - whether Jones v Dunkel inference open - whether contraventions established.

DECISION: (1) Time for filing a summons for leave to appeal be extended up to and including 2 October 1998; (2) Grant leave to appeal; (3) Dismiss the appeal with costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40755/98
CLD 10305/97

HANDLEY JA
POWELL JA
GILES JA

Thursday 26 August 1999

KEKATOS v THE COUNCIL OF THE LAW SOCIETY OF NEW SOUTH WALES

JUDGMENT

1    HANDLEY JA: I agree with Giles JA subject to the minor qualifications contained in the judgment of Powell JA.
2    POWELL JA: I have read in draft the Judgment which has been prepared by Giles JA in this matter.
3    Although I agree with the Orders which Giles JA proposes and although I otherwise agree with his Honour’s reasons for proposing those Orders, I am unable to share his Honour’s views as to “the Tambouz debt transaction” (particulars 16, 17, 18).
4    Although what McInerney J had written in relation to those particulars was very brief, enough appears to indicate that he had accepted in full the substance of Mr. Gaitanos’ evidence and had rejected Mr. Kekatos’ denial of Mr. Gaitanos’ evidence. The latter’s evidence, as Giles JA has noted, included the fact that Mr. Kekatos had not demurred to the description that he was Mr. Tambouz’ “lawyer”; the further fact that, on various occasions when Mr. Gaitanos visited Mr. Kekatos, the latter was to be found, not in the offices of George Kekatos Pty. Limited or of “Kekatos Accountants”, but in the offices of “T. Bouzanis - Solicitors”; and the further fact that Mr. Kekatos referred to Mr. Tambouz’ cheque having been deposited in his (Mr. Kekatos’) trust account. To these facts might be added the further fact that the facsimile letter forwarded to Mr. Kekatos by Mr. Gaitanos’ wife - seemingly after the first telephone conversation between Mr. Gaitanos and Mr. Kekatos - was forwarded, not to the facsimile number appearing on the letterhead of Mr. Kekatos’ company, but to what was formerly the facsimile number of “Kekatos & Associates” and was then that used by “T. Bouzanis - Solicitors”.
5    However, as, in the event, my differing from Giles JA in respect of these matters does not affect the ultimate result of the appeal, I do not propose to pursue this question further.
6    As I have earlier noted, I agree with the Orders proposed by Giles JA.
7    GILES JA: Mr George Kekatos was admitted as a solicitor on 8 July 1983. He spent some years with a city firm in Sydney, and in 1986 or 1987 set up his own practice at Parramatta under the name Kekatos & Associates.
8    On 21 October 1993 the Law Society cancelled Mr Kekatos’ practising certificate. The cancellation was stayed on conditions, but his application for renewal of the practising certificate was refused, and as from 1 July 1994 he did not hold a practising certificate. On 22 December 1994 the Legal Services Tribunal ordered that Mr Kekatos’ name be removed from the Roll of Solicitors. Mr Kekatos then set up what he described as a consulting business under the name of George Kekatos & Co.
9 On 4 February 1997 the Law Society brought proceedings against Mr Kekatos, alleging that by reason of his conduct after his removal from the Roll he had acted in contravention of the provisions of Pt 3A of the Legal Profession Act 1987 (“the Act”). Particulars of the conduct and the provisions were given, in general terms that in relation to a number of transactions or events Mr Kekatos had held himself out to be a solicitor or had acted as a solicitor. The Law Society claimed a declaration that Mr Kekatos was guilty of contravention of the Act by reason of the particularised conduct, an order that Mr Kekatos be restrained from acting or purporting to act or hold himself out in any way whatsoever as a solicitor, and an order that Mr Kekatos be restrained from acting in contravention of any or all of the provisions of Pt 3A of the Act. The particulars were later amended, but the relief claimed remained the same.
10 On 24 February 1997 orders were made by consent in the terms of the restraining orders sought by the Law Society. The proceedings went to a hearing on the making of the declaration. After a hearing over three days in March 1998, on 20 August 1998 McInerney J declared that Mr Kekatos was guilty of contravention of the provisions of Pt 3A of the Act by reason of his conduct.
11 On 22 September 1998 Mr Kekatos filed a notice of appeal purportedly as of right. The appeal was incompetent, as leave to appeal was required (see Supreme Court Act 1970 s 101(2)(r)). When this was recognised, on 2 October 1998 Mr Kekatos filed a summons applying for an extension of time to apply for leave to appeal and for leave to appeal. The grant of leave to appeal was not seriously in question, and the argument on what was in effect an appeal went to the merits of the appeal.

The provisions of pt 3A of the Act

12 The contraventions alleged were of ss 48B(1), 48C(1), 48C(2), and 48E(2) of the Act. Those provisions were in the terms -

Section 48B(1): “A person must not act as a barrister or solicitor and barrister unless the person holds a current practising certificate.”

Section 48C(1): “A person must not falsely pretend to be qualified to act as a barrister or solicitor and barrister.”

Section 48C(2): “A person who does not hold a practising certificate must not:

(a) take or use a name, title, addition or description implying that the person is qualified to act as a barrister or solicitor and barrister, or

(b) do anything, or permit anything to be done, that holds out, advertises or represents that the person is so qualified.”

Section 48E(2): “A person must not directly or indirectly do any general legal work, or any probate work, for a fee unless the person is a barrister or solicitor.”

By the definition in s 3 of the Act, “solicitor” relevantly meant a legal practitioner who held a current practising certificate as a solicitor and barrister.

13    The provisions used different expressions within which Mr Kekatos’ conduct could fall - acting as a solicitor, falsely pretending to be qualified to act as a solicitor, holding himself out to be qualified to act as a solicitor (as a summary of many more alternatives in s 48C(2)), or doing general legal work for a fee. Common to the first three expressions was the notion of acting as a solicitor.
14    In In re Sanderson; ex parte The Law Institute of Victoria (1927) VLR 394 Cussen J said (at 369) that -

“ … if a person does a thing usually done by a solicitor, and does it in such a way as to lead to the reasonable inference that he is a solicitor - if he combines professing to be a solicitor with action usually taken by a solicitor - I think he then does act as a solicitor.”

The respondent had written a letter of demand. It was held that he had pretended to be a solicitor “in the sense that in writing to a person who, for all he knew, might be an ignorant person, he did use language which might convey to that person the idea that he was acting as a solicitor in the matter”, and that in conjunction with the pretence he had acted in a way in which a solicitor would act. Central to this was the impression which would be conveyed to the reader of the letter.

15    In Cornall v Nagle (1995) VR 1888 this manner of acting as a solicitor was adopted by Phillips J, and it was said that a person might also “act or practise as a solicitor” by doing something which was positively proscribed by an act or rules of court unless done by a duly qualified legal practitioner, or by doing something which, in order that the public might be adequately protected, was required to be done only by those who had the necessary training and expertise in law. It was not suggested that the second way of acting as a solicitor arose in the present case, and the third way of acting as a solicitor has not been taken up in this Court, see below.
16    In Felman v Law Institute of Victoria (1998) 4 VR 324 it was emphasised that a person who, in the lawful pursuit of an occupation other than law, gives advice for reward on matters lying within his or her area of occupational expertise does not necessarily act as a solicitor or a legal practitioner simply because the advice involves the expression of an opinion about the requirements of relevant legislation, statutory rules or the like. The expression “engage in legal practice” was said to mean “engage in legal practice as a legal practitioner”.
17    The manner of acting as a solicitor derived from In re Sanderson; ex parte The Law Institute of Victoria was adopted and applied in this Court in The Council of the Law Society of New South Wales v Seymour (1999) NSWCA 117. But the third way of acting as a solicitor stated in Cornall v Nagle was said to be too widely stated. It was said that taken literally, it extended to a variety of activities legitimately carried on by legally qualified persons, including judges, legal academics, and arbitrators, who were not acting or practising as a solicitor, or purporting to do so, when carrying out those activities.
18 In the present case, it must therefore be asked whether, so far as the provisions of Pt 3A of the Act involved acting as a solicitor, Mr Kekatos did things which, although not required to be done by a solicitor, were usually done by a solicitor, and did those things in such a way as to lead to the reasonable inference that he was a solicitor. The cautionary qualification in Felman v The Law Institute of Victoria must be remembered, and in The Council of the Law Society of New South Wales v Seymour Fitzgerald JA, with whom Priestley and Stein JJA agreed, said -

“While some activities regularly performed by solicitors are also frequently lawfully performed by persons who are not solicitors, for example, by accountants, merchant bankers, financial advisers, etc. other activities regularly performed by solicitors, including activities which may be lawfully performed by a person who is not a legal practitioner with a current practising certificate, might seldom, if ever, be performed by any person who is not a solicitor. Although activities which fall into either category are material, an affirmative answer to the second question drawn from Sanderson (1927) VLR 394, will likely be difficult to arrive at if the only relevant activities are in the first category and are limited in their number and nature. There is no policy justification for including activities which may be lawfully carried out by any person who does not act as though he or she has a status which he or she does not possess within the monopoly of legal practitioners with practising certificates.

…

The inference required by the second question based on Sanderson (1927) VLR 394, must be considered by reference to a reasonable person with knowledge of the material activities, which will include any statement by which the person performing the activities misrepresents that he or she is a solicitor or explains that he or she is not a solicitor. The reasonable person to be considered is a person dealing with the person alleged to have acted as a solicitor. When activities may lawfully be carried out by a person who is not a solicitor, his or her knowledge that the person with whom he or she is dealing is aware that he or she is not a solicitor, even if not based on his or her acknowledgment of the true position, makes it difficult, if not impossible, to be satisfied that the only reasonable inference open is that he or she acted as a solicitor.”

19    It was common ground that the Law Society had to satisfy the civil onus of proof on the balance of probabilities. However, the nature and consequences of the proceedings and the gravity of the Law Society’s allegations had to be taken into account: Evidence Act 1995 s 140; cf Briginshaw v Briginshaw (1938) 60 CLR 336 at 342; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 449-50.

The particularised conduct

20    The particulars as amended were in eighteen paragraphs. The particulars in paras 6, 7, 8, 11 and 12 were not relied on at the hearing.
21    The particulars in the remaining paragraphs were -

“1. On or about June 1995 and 3 July 1995 in advising, representing and otherwise acting as a solicitor for and on behalf of Shevder Grewal, also known as Syd Grewal, in relation to the sale of a business and lease of premises known as “Tandoori Rasoi” restaurant, situated at 453 Cleveland Street, Surry Hills, the defendant acted in contravention of the provisions of section 48B(1) of the Legal Profession Act 1987.

2. During the same times in holding himself out to be a solicitor to Sam Ashok Kumar, the defendant acted in contravention of the provisions of section 48C(2) of the Act.

3. On or about 9 August 1994 in advising, representing and otherwise acting as a solicitor for and on behalf of Anthony Saviour Aquilina, a guarantor for Kings Langley Medical Centre Pty Limited, the defendant acted in contravention of the provisions of section 48B(1) of the Act.
4. On or about 9 August 1994 in, directly or indirectly and for a fee, drawing, filling up and/or preparing an instrument, namely a guarantee document being an instrument or other document which affected rights between parties, the defendant acted in contravention of the provisions of section 48E(2) of the Act.

5. On or about 9 August 1994 in advising representing and otherwise acting as a solicitor for and on behalf of Anthony Saviour Aquilina in providing a solicitor’s certificate to the Australia and New Zealand Banking Group Limited in respect of the obligations of Kings Langley Medical Center Pty Limited, the defendant acted in contravention of the provisions of section 48B(1) of the Act.

…
9. On 15 April 1995 by the use of the letters “LLB” after his name on his letterhead, the defendant acted in contravention of the provisions of section 48C(1) and/or section 48(2)(a) and/or section 48C(2)(b) of the Act.

10. On 21 June 1996, by using the words “Kekatos, solicitor representing Mr Nasser … “ in a conversation with John Palasty, the defendant acted in contravention of the provisions of section 48C(1) and/or section 48C(2)(a) and or section 48C(2)(b) of the Act.

…

13. On 15 February 1995 in advising, representing and otherwise acting as a solicitor for and on behalf of Brian Savic when Brian Savid was interviewed by police, the defendant acted in contravention of the provisions of section 48B(1) of the Act.

14. On 2 May 1995 in advising, representing and otherwise acting as a solicitor for and on behalf of Stefan Allen and Kon Mourtekis when they were interviewed by police, the defendant acted in contravention of the provisions of section 48B(1) of the Act.
15. On 11 April 1996 in advising, representing and otherwise acting as a solicitor for and on behalf of Bruce Rigby during an interview with Constables Jason Robert McKeen and David Anthony McRae, the defendant acted in contravention of the provisions of section 48B(1) of the Act.

16. In or about January 1997, in advising, representing and otherwise acting as a solicitor for and on behalf of Nasser Tambouz in connection with an alleged debt to Atlas Concorde Pty Ltd, the defendant acted in contravention of the provisions of Section 48B(1) of the Act.

17. On or about 6 February 1997 when the words, “I have been talking with Mr Tambouz - he owes my company $5,680.00 - he gave us a cheque that bounced and he told me that you’re his lawyer and to ring you because you hold some money of his and you are going to pay me on his behalf”, were spoken by George Gaitanos, the defendant represented that he was a solicitor by failing to deny that he was a solicitor and thereby acted in contravention of the provisions of Section 48C(1) and/or Section 48C(2)(a) and/or Section 48C(2)(b) of the Act.

18. On or about 7 February 1997, by using the words “You can’t have a cheque today because the funds have to be cleared. I have put Tambouz’s cheque into my trust account”, in a conversation with George Gaitanos, the defendant acted in contravention of the provisions of Section 48C(1) and/or Section 48C(2)(a) and/or Section 48C(2)(b) of the Act.”

22    The particulars involved eight separate transactions or events. In date order, they were -

(a) 9 August 1994 - the Acquilina guarantee transaction (paras 3, 4 and 5);
(b) 15 February 1995 - the Savic police interview (para 13);

(c) 2 May 1995 - the Allen/Mourtekis police interview (para 14);

(d) June/July 1995 - the Tandoori Rasoi restaurant transaction (paras 1 and 2;
(e) 11 April 1996 - the Rigby police interview (para 15);

(f) 15 April 1996 - the use of “LLB” (para 9);

(g) 21 June 1996 - the Palasty conversation (para 10); and
(h) January/February 1997 - the Tambouz debt transaction (paras 16, 17 and 18).

23 McInerney J was not satisfied that the contraventions in paras 9 and 15 of the particulars ((f) and (e) above) had been made out. But on his findings both generally and in relation to the other paragraphs, his Honour concluded “that the defendant has breached the relevant provisions of the Act; that he has acted as a solicitor on occasions; and that he has told persons that he was a solicitor”.
24    The declaration was made by McInerney J notwithstanding that the restraining orders sought by the Law Society had been made by consent. Mr Kekatos had opposed that course, and his grounds of appeal included that his Honour had erred in holding that it was proper to make the declaration. That ground of appeal was expressly abandoned.
25 The declaration did not specify the conduct and provisions making up the contravention of the provisions of Pt 3A of the Act. No doubt on the basis that the conduct and provisions were evident from his Honour’s reasons, it was not suggested that the declaration should have been differently framed.
26    There was no cross-appeal in relation to the contraventions in paras 9 and 15, the use of “LLB” and the Rigby police interview. It is not necessary to refer to those transactions or events in what follows.

The submissions on appeal

27 Mr Kekatos’ submissions on appeal included that his Honour had erred in particular findings, and in concluding that particular transactions or events involved conduct in contravention of provisions of the Act. But his principal submission was that the trial had miscarried because his Honour had exhibited, during the hearing and more so in his reasons, what was described as a closed mind; that submission encompassed some of the particular errors, and the subsidiary submissions encompassed other general grounds of appeal and the remaining particular errors. It is convenient to deal first with the principal submission and then with the subsidiary submissions, addressing the challenges to particular findings and conclusions as to particular transactions or events as appropriate in the course of doing so.
28    Some background will assist in understanding the submissions.
29    Mr Kekatos’ practice as Kekatos & Associates had been at offices at Level 2, 22 Hunter Street, Parramatta (“the Level 2 offices”). The offices were Suite 2 at that level. Also on Level 2 were the offices of an accountancy practice conducted by Mr Kekatos’ brother Mr Jerry Kekatos in Suite 1 under the name J Kekatos & Partners. The two suites were not connected, and each had its own entrance and reception area. Each set of offices had its own boardroom. There were three separate offices within Suite 1. While conducting the solicitors practice Mr Kekatos occupied office No 1.
30    According to Mr Kekatos, Miss Patricia Bouzanis took over the solicitors practice when he set up his consulting business as George Kekatos & Co, and he conducted the consulting business at offices at Level 1, 22 Hunter Street, Parramatta (“the Level 1 offices”). Miss Bouzanis had been employed in the solicitors practice for about four years. The name of the solicitors practice was changed to T Bouzanis Solicitors (incorporating Kekatos & Associates). Whether Mr Kekatos continued to use the Level 2 offices, and use them as a solicitor, was one of the issues at the hearing; as part of that, the business relationship between Mr Kekatos and Miss Bouzanis was in question.

The closed mind submission

31    The description came from Galea v Galea (1990) 19 NSWLR 263, in which Kirby ACJ said (at 281) that a judge’s interventions might indicate that a fair trial had been denied because the judge had “closed his or her mind to further persuasion, moved into counsel’s shoes and ‘into the perils of self-persuasion’”. As well as intervention, however, Mr Kekatos said that errors in findings and observations as to forgery and conspiracy were symptomatic of an inappropriate role taken by his Honour, and together with the judge’s interventions indicated the closed mind.

(a) Forgery

32    Forgery arose in relation to the Aquilina guarantee transaction. The conduct alleged in paras 3, 4 and 5 of the particulars was, in brief, preparing or completing the guarantee, providing a solicitor’s certificate and otherwise acting as solicitor for Mr Aquilina.
33    Mr Aquilina was a director of Kings Langley Medical Centre Pty Limited. His nephew, Mr Lee Foundis, had been a director. According to Mr Acquilina, but denied by Mr Foundis, Mr Foundis had resigned as a director. The guarantee was purportedly given by Mr Aquilina and Mr Foundis to Australia and New Zealand Banking Group Limited (“the Bank”) guaranteeing the account of Kings Langley Medical Centre Pty Limited to the Bank. There were issues concerning Mr Foundis’ signature of the guarantee and the giving of a solicitor’s certificate in relation to his signature, but they need not be described.
34    The guarantee was dated 9 August 1994. It bore what appeared to be the signature of Mr Aquilina, witnessed by a “J Antonenas” with a manuscript address of Level 2, 22 Hunter Street, Parramatta and occupation of solicitor. Mr Aquilina was not sure whether the signature was his “although it certainly looks like my signature”. He said that he did not know a J Antonenas, and that he had never signed documents at the Level 2 offices.
35    Between 18 July 1994 and 9 February 1995 Mr James Antonenas was employed by the firm T Bouzanis Solicitors (incorporating Kekatos & Associates) at the Level 2 offices. He gave evidence that whilst so working he saw Mr Kekatos on a daily basis, and that Mr Kekatos had an office on Level 2, next to Mr Antonenas’ office in Suite 2 - indeed, he said that Mr Kekatos occupied the office which Mr Kekatos had occupied while conducting the solicitors practice. He also gave evidence that he did not know that Mr Kekatos had an office on Level 1. During his employment he spoke to Mr Kekatos daily, and he saw Mr Kekatos’ handwriting “almost daily” on court documents on the files, and otherwise on the files. He said that Mr Kekatos would write out memos to his secretary or write out documents, that there was an occasion on which he was asked by Mr Kekatos to look at and make changes to a memorandum accompanying lease documents, and that the address in the lease documents Suite 2, 22 Hunter Street, Parramatta was in Mr Kekatos’ handwriting.
36    Mr Antonenas said that the signature as witness to Mr Aquilina’s signature on the guarantee was not his, and that the name of Mr Acquilina written in at the signature clause and the address of Level 2, 22 Hunter Street, Parramatta were in the writing of Mr Kekatos. He said that he had had nothing to do with the guarantee or, save on one occasion sitting in on a conference between Miss Bouzanis and Mr Aquilina, with Mr Aquilina.
37    A solicitor’s certificate addressed to the Bank dated 9 August 1994 stated that James Antonenas had explained the guarantee to Mr Aquilina. The name James Antonenas was written in the body of the certificate as the name of the person who gave it. It bore the signature “J Antonenas”, with a manuscript name James Antonenas beneath the signature and address of Level 2, 22 Hunter Street, Parramatta. An insertion in the body of the certificate had the marginal initials “JA”. Mr Antonenas said that none of the manuscript date, the signature, the name, the address or the initials was placed on the certificate by him, and he identified all the writing other than the signature as that of Mr Kekatos.
38    His Honour said -

“The handwriting in these documents is quite distinctive. For example, the double letter ‘r’ in Hunter and the letter ‘r’ in Street, Parramatta, and Solicitor. The writing slopes backwards slightly. Some slight differences in the handwriting were pointed out. But taken overall, in my view, the writing is very similar, and I am satisfied on the evidence that it is that of the defendant.”

39    His Honour later said -

“The defendant denied his handwriting was in any of the documents and the stated that he had never acted for Mr Aquilina. The question is whether the only reasonable inference open is that the defendant so acted as a solicitor. If one accepts that the defendant forged the signature of Mr Antonenas, clearly he was purporting to act as a solicitor. Mr Antonenas denies that the documents bear his signatures and no-one has suggested that they do. The documents were purportedly executed in front of a person who, on the face of it, represented himself as a solicitor. I accept that the defendant, for whatever reason, forged the signature of Mr Antonenas on those documents. Whilst there is no direct evidence that the defendant or the firm received a fee, I would infer that this sort of activity would not be performed free of charge. I believe also that Mr Aquilina was less than frank about the documents. I infer that he knew more about them than his evidence before me would suggest.”

40    The bold submission was made that there was “no evidence at all which could possibly support his Honour’s finding that Mr Kekatos had forged the signatures of Mr Antonenas on the two documents”. It was submitted that his Honour made the finding of forgery without evidence, and uninvited by the Law Society. It was submitted also that there was no evidentiary basis for the finding that the other handwriting on the two documents was that of Mr Kekatos, which erroneous finding must have supported his Honour’s finding as to forgery. The findings as to the signatures and other handwriting, it was said, were explicable only on the basis that his Honour had succumbed to self persuasion and had closed his mind to all else.
41 In my opinion, it was well open to his Honour to make the findings he did, and to conclude that the relevant contraventions of the provisions of the Act had been made out: he did not go outside his proper role in doing so.
42    The finding that the manuscript addresses and other words and letters on the guarantee and the certificate, apart from the signatures purporting to be signatures of Mr Antonenas, were in the writing of Mr Kekatos was thoroughly supported by the evidence. There was direct evidence from Mr Antonenas. Mr Antonenas’ evidence included that he had sen Mr Kekatos writing the words “Level 2, 22 Hunter Street, Parramatta” two or three times, and he described distinctive features of Mr Kekatos’ writing. As well, Mr Antonenas had the more general acquaintance with Mr Kekatos’ writing earlier described. It was not necessary, as was suggested, that Mr Antonenas produce or refer in his evidence to a document admittedly in Mr Kekatos’ writing. Nor was it necessary, as was also suggested, that there be expert evidence comparing the writing with admitted writing of Mr Kekatos. Mr Antonenas had more than sufficient acquaintance with the writing for his evidence to be reliable.
43    I do not accept that, as at one point seemed to be submitted, that in the passage earlier first set out his Honour erroneously reasoned from similarity between the relevant handwriting on the guarantee and the certificate to the handwriting being that of Mr Kekatos, in the absence of comparison with admitted handwriting of Mr Kekatos. In that passage his Honour was responding to Mr Kekatos’ evidence, he having denied that the handwriting was his, to the effect that there were differences between the handwriting in the two documents. His Honour was not reasoning in the manner suggested, and in fact the evidence included handwriting undoubtedly that of Mr Kekatos. We were taken to that handwriting in the appeal, and comparison with the relevant handwriting on the guarantee and the certificate supports his Honour’s finding.
44    The finding as to the signatures themselves was not founded on evidence of Mr Antonenas, or on expert evidence. That does not mean, however, that there was no evidence to support it. In my opinion it was an available, indeed all but inevitable, inference. Mr Antonenas did not write the signatures. Who would have done so, other than the person who wrote the address and occupation on the guarantee and filled in the handwriting on the certificate, especially when that person wrote in the name of Mr Antonenas as the giver of the certificate and as the signatory? Given the finding as to the other writing, Mr Kekatos was involved in the preparation and signature of the guarantee and the giving of the certificate. He did not explain how someone else might have signed as Mr Antonenas - his evidence was that he knew nothing of the documents. On the balance of probabilities, to a high standard, Mr Kekatos was the person who signed as Mr Antonenas.
45    It was nonetheless submitted that the finding of forgery could not have been made when it was not part of the Law Society’s particularised case that Mr Kekatos had forged the signatures, when it was not put to Mr Kekatos that he had forged the signatures, and when the Law Society had not submitted to McInerney J that Mr Kekatos had forged the signatures.
46    In my opinion it was within the particulars that Mr Kekatos had placed on the documents the signatures purporting to be the signatures of Mr Antonenas: that was part of the allegation of acting as a solicitor, and in particular of the allegation of acting as a solicitor in providing a solicitor’s certificate. Mr Kekatos can not have been in any doubt, after receiving the affidavit of Mr Antonenas many months before the hearing, that the Law Society’s case included that he had placed the signatures on the documents, and there was no need to use the word forgery. From his own evidence, Mr Kekatos was not in doubt: after he had said that he had not seen the guarantee or the certificate until the affidavit was served on his solicitors, he said, “I was surprised when I saw the document and it being said that I witnessed it and my writing was on a document for the ANZ Bank” (emphasis added).
47    Mr Kekatos denied that he had seen the documents before - he said that he had nothing to do with the Acquilina guarantee transaction, had not seen the documents, and “I have no idea about these documents whatever”. He recognised that it was alleged that the writing on the documents was his, and denied it. There was no necessity specifically, and pointlessly, to put to him that he had placed on the documents the purported signatures of Mr Antonenas, or forged the signatures, in order to receive a further denial.
48    A finding that Mr Kekatos wrote the purported signatures of Mr Antonenas, without necessarily using the word forgery, must have been within the Law Society’s submissions that contraventions had been made out as particularised. That was an obvious element in the particulars - from his witnessing Mr Acquilina’s signature of the guarantee and giving the certificate, although in the name of Mr Antonenas, it should be found that Mr Kekatos had the particularised involvement in the transaction amounting to acting as a solicitor and doing general legal work for a fee.
49    Mr Kekatos submitted that, even if he had placed the purported signatures of Mr Antonenas on the documents, it did not follow that he had acted as a solicitor, or that he had done general legal work for a fee. It was said that Mr Aquilina denied that he had retained Mr Kekatos to act as his solicitor, and that the rejection of Mr Acquilina’s evidence in this respect implicit in the description of Mr Acquilina as less than frank did not provide positive evidence in favour of the Law Society (see Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640; Broken Hill Co Pty Ltd v Waugh (1988) 14 NSWLR 360).
50    McInerney J was entitled to conclude, with the requisite confidence, that the involvement in the transaction demonstrated by witnessing Mr Acquilina’s signature of the guarantee and giving the certificate, with the completion of addresses and other matters in the documents as described, was something usually done by a solicitor, and done by Mr Kekatos in circumstances leading to the reasonable inference that he was a solicitor. He was entitled to conclude that Mr Kekatos was acting as a solicitor, and to infer that Mr Kekatos would not have done the legal work unless for a fee (see Martin v Osborne (1936) 55 CLR 367 at 377). The conclusion and inference could more readily be come to and made when Mr Kekatos had not offered an explanation for the involvement consistent with his acting otherwise than as a solicitor, but had denied the involvement. I do not think there was any error in his Honour’s satisfaction that there had been contravention of the provisions of Pt 3A of the Act in this respect.
51 In the course of his submissions Mr Kekatos said that there could not have been a holding out that he was a solicitor, because any holding out was that a Mr Antonenas was a solicitor. The submission was not one of egregious merit, but in any event was misconceived. The contraventions of s 48B(1) and 48E(2) of the Act were established by what Mr Kekatos did in the name of and as a solicitor, even if in a false name and falsely as a solicitor. There was no question of holding out to the Bank that Mr Kekatos, as distinct from a Mr Antonenas, was a solicitor, and on his Honour’s findings Mr Aquilina knew that the person with whom he was dealing was Mr Kekatos, as distinct from Mr Antonenas.

(b) Conspiracy

52    So far as the closed mind submission involved the question of conspiracy, it was founded on a passage in his Honour’s judgment -

“Each witness who gave evidence for the plaintiff was cross-examined at some length down to the minutest detail to establish a lack of credit in their evidence. When anything was said by any of the witnesses which involved them in stating that the defendant had acted as a solicitor (by either directly stating that he was a solicitor or giving the impression that he was a solicitor or giving legal advice) the suggestion was that they were ‘making it up’.

Therefore on the defendant’s case, there is on foot a conspiracy between a number of witnesses who, on the face of it, have no association with each other who are conspiring against the defendant.”

53    From a reading of the transcript, the description of cross-examination in the first sentence of this passage was accurate. The cross-examiner did not specifically put to all of the witnesses that he was making up the solicitorial evidence, but all the cross-examinations left little room for the alternatives of poor recollection or honest error.
54    The Law Society’s evidence included affidavit evidence from Mr Kumar in relation to the Tandoori Rasoi restaurant transaction, Mr Palasty in relation to the Palasty conversation, and Mr Gaitanos in relation to the Tambouz debt transaction. It was put to each of these witnesses in cross-examination that he was not telling the truth, and in the cases of Mr Kumar and Mr Gaitanos that he was making up the solicitorial evidence.
55    Then in the course of Mr Kekatos’ cross-examination his Honour intervened specifically to put to Mr Kekatos a matter in the affidavit of Mr Kumar and a matter in the affidavit of Mr Palasty, each of which Mr Kekatos had denied, and asked Mr Kekatos whether he said that Mr Kumar or Mr Palasty made it up. Mr Kekatos replied in the affirmative. When the Law Society concluded cross-examination of Mr Kekatos in relation to the Tambouz transaction by putting to him that he had been dealing with Mr Gaitanos as a solicitor, received a denial, and moved to another matter, his Honour raised with Mr Kekatos a particular matter in the affidavit of Mr Gaitanos into which the Law Society had not fully gone. Mr Kekatos denied the matter, and the exchange between his Honour and Mr Kekatos continued -

“Q. That’s all made up apparently, is it?
A. By Mr Gaitanos it is, yes.

Q. I beg your pardon?
A. Yes, your Honour, I didn’t say such conversation with Mr Gaitanos. I had no cheque to give him. The cheque that he’d given had bounced.

Q. I know that. I am not asking about the cheque bouncing. Did you ever tell anyone to put it in your trust account?
A. No, your Honour, because I don’t have a trust account.

Q. I know you don’t have one. There seems to be a conspiracy against you with all these?
A. It seems to me, your Honour, the people who were affected by what I have done all want to get back at me at some point.

Q. They are all perjuring themselves, are they?
A. To a point, to achieve their own results.

Q. In one way or another?
A. In one way or another.”

56    It is necessary to read the transcript as a whole in order to appreciate the circumstances in which his Honour intervened, and elicited Mr Kekatos’ suggestions that these witnesses were making up evidence. Mr Kekatos’ counsel had already put specifically to Mr Kumar and Mr Gaitanos that they were making up the key portions of their evidence. The cross-examination by the Law society had not raised directly what his Honour put, and it was understandable that his Honour should wish to know whether Mr Kekatos clearly denied the matters in question. With respect, it may not have been appropriate to ask Mr Kekatos to give his, Mr Kekatos’, view of the witness’ thought processes, but no objection was taken by Mr Kekatos’ counsel, and it gave Mr Kekatos the opportunity to provide explanations for the evidence contrary to his own. He took the opportunity, saying that the people who were affected by what he had done all wanted to get back at him at some point. I do not think that, in the circumstances, his Honour stepped outside his proper role in what he put to Mr Kekatos, including when he referred to a conspiracy against him: it was a way of inviting explanation, and it brought an explanation.
57    It did not necessarily follow from Mr Kekatos’ explanation that there was a conspiracy between the witnesses. Each could have independently wanted to get back at Mr Kekatos. His Honour was entitled to bear in mind the likelihood or unlikelihood of the witnesses independently wanting to get back at Mr Kekatos, and being prepared to perjure themselves, and I do not think that he meant more by his reference to a conspiracy than that it was not likely. When his Honour came to deal with, and make findings as to, each transaction or event, he did so without any reference to conspiracy. He gave reasons for his findings which did not turn on the view of Mr Kekatos’ case expressed in the last sentence of the passage from the judgment last set out. I do not think that his Honour’s reference to a conspiracy indicates that he had the closed mind for which Mr Kekatos contended.

(c) Interventions

58    The remaining element in the closed mind submission was what was described as the “frequency and tone of the judge’s interruptions in the cross-examination, some of them irrelevant”.
59    With minor exceptions, the evidence in chief was given by affidavit. The Law Society called twelve witnesses. Mr Kekatos called four witnesses, apart from giving evidence himself. Most witnesses were cross-examined. There is no doubt that his Honour intervened to ask questions on a number of occasions during the cross-examinations, sometimes of the Law Society’s witnesses and to a greater extent of Mr Kekatos and his witnesses.
60    A judge should not depart from his role as a judge and take up the role of an advocate. But particularly when sitting without a jury (as was his Honour), the judge may intervene to control, to clarify, or to make known a provisional view. In modern times it is to be expected that the judge will not be a silent spectator, but will so intervene in the interests of ensuring a just and expeditious trial. As was said by Kirby P in Burwood Municipal Council v Harvey (1995) 86 LGERA 389 at 397, determining whether judicial intervention had crossed the line from the permissible to the impermissible requires an exercise of judgment by the appellate court, and the ultimate question is whether the conduct complained of has undermined the fairness of the trial so as to render it, in law, no trial at all. In some circumstances even extensive questioning by the judge will not undermine the fairness of the trial (Burwood Municipal Council v Harvey, at 398).
61    The exercise of judgment must take into account the course of the trial, why and when the judge’s interventions occur, and their frequency, length and terms. A distinction must be drawn between intervention which suggests that an opinion has been reached which can not be altered by further evidence or argument, and intervention which is neutral or which suggests only an opinion which is provisional, put forward to seek clarification, to test the evidence or to invite further persuasion. The distinction reflects that a judge finding the facts is, and is taken to be, able to correct and allow for preliminary opinions formed when reaching a final decision (see Galea v Galea at 281).
62    In order that it may exercise the judgment the appellate court must endeavour to place itself in the circumstances of the trial. That may not be easy from the cold print of a transcript. Assistance may be gained from the fact, if it be so, that the party alleging excessive interventions on appeal took no objection to the judge’s questioning at the trial, not only because waiver of later objection to what occurred at the trial may be found (Vakauta v Kelly (1989) 167 CLR 568 at 587) but also because absence of contemporaneous objection may be a guide to whether or not the interventions were inappropriate in occasion, extent or tone. Due allowance must be made for an advocate’s reluctance to object to questioning by a judge. But if a party is represented by experienced counsel it will be that counsel’s duty, in the interests of the party, to make known to the judge that the fairness of the trial is at risk, the more so as the judge’s intervention moves into the impermissible territory. Absence of objection may mean that, in the circumstances of the trial, there was properly no perception of a risk of unfairness.
63    Further, if it were thought politic not to object in the course of the judge’s questioning notwithstanding a perception that the questioning was excessive, or otherwise indicated that the judge had moved or was in danger of moving from his proper role to that of an advocate, it is to be expected that the party’s submissions to the judge would caution against a closed mind such as that urged upon us, and would seek to recall the judge to the proper role. It is also to be expected that, in the event of an appeal by the party, complaint as to the fairness of the trial would be prominent in the grounds of appeal. Again, absence of appropriate submissions, or of an immediate ground of appeal, may indicate that, in the circumstances of the trial, there was properly no perception of a risk of unfairness.
64    It is not practicable to set out all the interventions on which Mr Kekatos relied. We were taken to a little over twenty passages in the cross-examinations, principally the cross-examination of Mr Kekatos. These cross-examinations occupied the best part of a day. His Honour’s interventions to ask questions certainly do not warrant wholesale description as interruptions, some irrelevant.
65    Many of the interventions sought clarification, or corrected a slip or omission on the part of cross-examining counsel. A number specifically raised with the witness a matter which had not been raised by the cross-examiner, but which it was appropriate to have specifically been put to the witness - the matters put to Mr Kumar, Mr Palasty and Mr Kekatos earlier described are examples. Only one passage was instanced as an irrelevant interruption, a passage when his Honour had asked about the circumstances in which the Legal Services Tribunal ordered that Mr Kekatos’ name be removed from the Roll of Solicitors; I do not think it was irrelevant.
66    All that said, on the cold print of the transcript there were a number of occasions on which his Honour asked questions of witnesses, in particular Mr Kekatos, in what could be seen as a rather challenging way, in particular Mr Kekatos, in what could be seen as a rather challenging way, more as a cross-examiner than an inquirer after clarity. The passage set out earlier in relation to conspiracy was said to be one of the strongest examples. In the circumstances of the trial as a whole, however, I am not persuaded that there was intervention such as to make the trial unfair, or to indicate the closed mind for which Mr Kekatos contended.
67    His Honour’s questions of Mr Kekatos’ witnesses, as distinct from Mr Kekatos himself, do not in my view contribute materially to the present question. My appreciation from reading the transcript is that early in the cross-examination of Mr Kekatos there occurred to his Honour a number of questions which counsel for the Law Society did not raise, and so he raised them. They were discrete matters, the subject of perhaps half a dozen occasions for questions. Mr Kekatos’ answers to questions in the course of the cross-examination were then sometimes inherently improbable, and brought some further investigation by his Honour. Overall, in my view, his Honour was endeavouring to explore and understand Mr Kekatos’ evidence and the case being put forward through that evidence. I do not think that, on a proper reading of the transcript, the nature and extent of his Honour’s intervention suggested that his Honour had formed a view as to Mr Kekatos’ credit, still less as to the conduct alleged by the Law Society or its consequences, from which his Honour could not be moved by regard to other evidence or to argument. The questioning was on occasions vigorous, but it was not unfair, and the rulings on evidence required of his Honour demonstrated a balanced and just approach to both sides in the course of the hearing.
68    While I would be of this view in any event, that the exercise of judgment is a correct one is, to my mind, confirmed by the facts that Mr Kekatos was represented by highly experienced counsel, that no objection was made to the effect that his Honour’s interventions were excessive or put the fairness of the trial at risk, that no submission was put to his Honour reflecting concern over his Honour’s conduct in the course of the trial or as to a risk of a mind closed to Mr Kekatos’ position, and that the notice of appeal filed on 11 September 1998 did not include a ground going to the interventions now said to have made the trial unfair. (Mr Kekatos’ counsel did object when his Honour put a matter to Mr Kumar as earlier described, but on a ground not involving that his Honour was inappropriately intervening.) Mr Kekatos’ counsel at the trial drafted the notice of appeal filed on 11 September 1998, and a ground of appeal complaining of his Honour’s interventions was first raised, by different counsel, a few days before the hearing of the appeal. This is, of course, far from conclusive, but an appellate court should be mindful that the circumstances of a trial may not adequately be conveyed to it by the appeal papers and that, in the circumstances as properly perceived by those at the trial, there was no foundation for the complaint made on appeal.
69    I adhere to my view notwithstanding the submission by Mr Kekatos that, as in Vakauta v Kelly, the baleful implication of his Honour’s intervention was reasonably not appreciated until he delivered his reasons. In Vakauta v Kelly the waiver of the right to object to comments during the hearing founding a perception of bias did not extend to further comments in the judgment, because the further comments in the context of the earlier comments gave rise to a like perception and there had been no waiver in relation to the further comments. Mr Kekatos said that it was not until the terms of the judgment were available that the closed mind became evident, from the combination of what had occurred in the course of the trial and what was said in the judgment, so that objection during the hearing should not have been expected. The submission does not address the lateness of the ground of appeal, but had the circumstances been such that the interventions of which Mr Kekatos now complains put the fairness of the trial at risk or indicated a closed mind, objection should have been taken at the time.
70    Neither separately nor together, in my opinion, do the matters on which Mr Kekatos relied for the closed mind submission make it out. I am not persuaded that the trial miscarried in the manner suggested. To the extent to which Mr Kekatos relied also on the working in the office submission later considered, as will appear I do not think he is assisted by it.

The Jones v Dunkel submission

71    As I have said, Miss Bouzanis took over Mr Kekatos’ practice. She had been admitted as a solicitor in November 1990, and had been employed in Mr Kekatos’ practice from about that time. There was no evidence as to the business arrangements, if any, between Mr Kekatos and Miss Bouzanis when she took over the practice, or with respect to its conduct by her.
72    McInerney J inferred that Miss Bouzanis lacked the experience of Mr Kekatos. He said that, according to Mr Kekatos, the practice specialised in corporate and company law, and that he inferred that a very experienced solicitor would be required to run such a practice. He referred to evidence given by Mr Kekatos to the effect that, although in the period after the transfer of the practice he sat in on conferences conducted by Miss Bouzanis with old clients and explained matters to Miss Bouzanis in the presence of the clients, he did not express any legal opinion.
73    Miss Bouzanis was not called as a witness. No explanation was given for her non-attendance. Each of the Law Society and Mr Kekatos alleged that it was the other’s responsibility to call Miss Bouzanis, and each asked his Honour to draw inferences as to the failure of the other to call her. After reference to Jones v Dunkel (1960) 101 CLR 298, Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389, and Payne v Parker (1976) 1 NSWLR 191, his Honour said -

“The defendant had knowledge of the precise manner in which the business was conducted. He was no doubt the person who entered into arrangements with Miss Bouzanis for her to take over the practice. She would have been in a position to elucidate how he came to take over the practice and in particular the defendant’s activities in respect of the practice thereafter.

I conclude that Miss Bouzanis could not have given evidence which would have assisted the defendant. In those circumstances, I can more confidently accept the evidence adduced by the plaintiff.”

74    Mr Kekatos submitted that there was no basis for his Honour’s inferences as to Miss Bouzanis’ lack of experience and the necessity for an experienced solicitor to run the practice, and that they were “flawed findings” on which to found further inferences as to the failure to call her. I doubt that Miss Bouzanis’ experience and the nature of the practice were of much significance in reaching a Jones v Dunkel conclusion, since Miss Bouzanis could have given evidence of how she came to take over the practice, and of Mr Kekatos’ activities in respect of the practice thereafter, whatever her experience was and whatever the need for an experienced solicitor to run the practice. The inferences could have had some significance for a different reason, that if Miss Bouzanis could not properly conduct the practice it might have been more likely that Mr Kekatos continued to participate in its conduct including by acting as a solicitor. It does not matter, because in my opinion the inferences were well open to his Honour.
75    Mr Kekatos further submitted that it was incorrect to reach a Jones v Dunkel conclusion adverse to him, when the Law Society had alleged specific conduct in part involving Miss Bouzanis but not to do with her acquisition of the practice of Mr Kekatos’ general activities after she took over the practice. In that situation, it was said, the Law Society should have called Miss Bouzanis as part of making out its allegations. I do not agree. The allegations, and the evidence, put Miss Bouzanis firmly in the camp of Mr Kekatos (see Payne v Parker at 201 per Glass JA), if he were acting as a solicitor a beneficiary of his so acting or even a participant in his so acting. In my opinion his Honour was entitled to proceed on the basis that Miss Bouzanis could not have given evidence which would have assisted Mr Kekatos.

The working in the office submission

76    Mr Kekatos submitted that McInerney J had made an unwarranted finding that he was working within Miss Bouzanis’ offices as a solicitor, and had used the finding as a basis for generally disbelieving him. According to the submission, there was no evidence on which such a finding could be made, and his Honour’s conclusion that the contraventions had been established was undermined. It was said at one point that what his Honour did was a further illustration of his self persuasion tending to support the closed mind submission.
77    Whether Mr Kekatos was working within Miss Bouzanis’ offices as a solicitor was canvassed most directly in connection with the Aquilina guarantee transaction. It was considered by his Honour, however, before he addressed the conduct particularised in paras 3, 4 and 5. His Honour said that the evidence of Mr Antonenas was “very important in respect of the defendant’s activities in and around Level 2, 22 Hunter Street, Parramatta”. After dealing with some of Mr Antonenas’ evidence, he said -

“The defendant’s Practising Certificate was cancelled during the whole of the period when Mr Antonenas was employed with the firm. I gained the overall impression from the evidence of Mr Antonenas that the defendant was working in the office as a solicitor. I just cannot accept the evidence of the defendant that after being struck off he has never acted as a solicitor or given legal advice to anyone. In my view, the evidence is contrary to that.”

The concluding sentences of this passage went beyond the Acquilina guarantee transaction and the evidence of Mr Antonenas, but it may be accepted that the impression from the evidence of Mr Antonenas was material to his Honour’s conclusion that the contraventions had been established.

78    I have already referred to the evidence of Mr Antonenas. According to that evidence, Mr Kekatos continued to occupy an office in Suite 2 at the Level 2 offices being the office which he occupied before being removed from the Roll, Mr Antonenas saw him on a daily basis, and Mr Kekatos was writing out memoranda or documents and on one occasion asked Mr Antonenas to look at the memorandum accompanying lease documents. Mr Kekatos denied that he occupied the office in Miss Bouzanis’ offices, that he saw Mr Antonenas on a daily basis, and that he provided memoranda to Mr Antonenas. He said that he conducted his consulting business at the Level 1 offices, and when asked about his signature of documents containing the address Level 2, 22 Hunter Street, Parramatta said that he used that address because he did not have a reception area or receptionist on Level 1 and made use of his brother’s reception area and receptionist in Suite 1 at the Level 2 offices.
79    His Honour accepted the evidence of Mr Antonenas. That Mr Kekatos had acted as a solicitor in the Acquilina guarantee transaction was thereby supported, but more widely I see nothing wrong with his Honour stating, as he did, that he “gained the overall impression from the evidence of Mr Antonenas that the defendant was working in the office as a solicitor”. It was not correct that there was no evidence on which such a finding could be made, and the evidence of Mr Antonenas clearly justified such a finding.
80    Mr Kekatos’ submissions included that the fact that Mr Kekatos went frequently to the Level 2 offices was not surprising, as he was a qualified accountant, gave evidence that he was assisting in company administrations, and also gave evidence that he went to the offices to prepare his case for the strike off proceedings brought by the Law Society and for the hand-over conferences. It was said that any memoranda and documents were not necessarily legal memoranda and documents; it was also said that there was no evidence that Mr Kekatos gave legal advice to a specific client or acted as a solicitor in a specific matter in which Mr Antonenas, was also involved. The submissions required a parsimonious, even unrealistic view, of the evidence of Mr Antonenas, which had Mr Kekatos as the occupant of an office in Suite 2 not a visitor. His Honour accepted that evidence, and I do not think he was in error in the use he made of it.

The Savic police interview submission

81    Mr Savic was interviewed in relation to allegations of fraud. Miss Bouzanis and Mr Kekatos accompanied him to the interview. Miss Bouzanis was introduced as a solicitor. The interviewing police office gave evidence that Mr Kekatos said he was Mr Savic’s “adviser”. Mr Kekatos gave evidence that he was present only as a friend, to provide moral support, in this being supported by Mr Savic. There was other evidence, to some of which I will refer, of what occurred during and in relation to the interview.
82    It was found that Mr Kekatos -

“ … knowing the facts, went with Mr Savic, not to give him moral support but in effect as his legal adviser and that he had Miss Bouzanis come along to create the impression that she was Mr Savic’s legal adviser. I am not satisfied that he represented himself to be a solicitor, but I am satisfied that by representing himself as an adviser he was allowed to be present at the interview.”

His Honour did not in terms state that Mr Kekatos had acted as a solicitor, the relevant allegation being of contravention of s 48B(1) of the Act, but it is clear from his reference to Mr Kekatos going with Mr Savic” in effect as his legal adviser” and to the other evidence of what occurred during and in relation to the interview that he so concluded.

83    Mr Kekatos submitted that the evidence fell short of establishing that he acted as a solicitor, because there was no specific evidence of his giving advice to Mr Savic and no specific evidence of his saying or doing something during or in relation to the interview which could constitute representing Mr Savic as a solicitor.
84    Mr Kekatos’ evidence included that before the interview he “would have” told Mr Savic that there were things he could and could not answer. He gave the interviewing police officer his business card. His Honour found that Miss Bouzanis said nothing during the interview, but that Mr Kekatos interrupted the interviewing police office on a number of occasions. His Honour rejected the evidence of Mr Savic to the effect that Miss Bouzanis was to be his legal adviser but it was not necessary for him to ask for advice. At the conclusion of the interview Mr Savic was told that he would be charged, he asked to speak to his legal representatives alone, and he was left with Miss Bouzanis and Mr Kekatos; the person he spoke to was Mr Kekatos. These matters alone justified, indeed all but compelled, the conclusion that Mr Kekatos represented and advised Mr Savic as his legal adviser, that is, acted as a solicitor. It is unnecessary to consider whether this was a situation in which rejection of Mr Kekatos’ evidence that he attended the interview only as a friend supported the view that he attended it as Mr Savic’s solicitor (Steinberg v Federal Commissioner of Taxation at 694).
85    It does not matter that Mr Kekatos did not represent to the police that he was a solicitor. He acted as a solicitor by being present as Mr Savic’s legal adviser and, by the preceding advice, the interruptions, and the conferring following the interview, doing what a solicitor would normally do in circumstances in which the reasonable inference was that he was a solicitor.

The Allen and Mourtekis police interview submission

86    Messrs Allen and Mourtekis were interviewed in connection with the Savic charge. Each gave evidence that he wanted Mr Kekatos present as a friend, not to represent him or provide legal advice. The interviews took place at the Level 2 offices, pursuant to appointments made by the interviewing police office contacting Mr Kekatos. Miss Bouzanis was not present at the interview with Mr Allen, although Mr Allen erroneously said that she was, nor was she present at the interview with Mr Mourtekis. The interviewing police officer could not recall his conversation with Mr Kekatos, but gave evidence that when he told each of Mr Allen and Mr Mourtekis that he intended to take a statement each looked at Mr Kekatos and Mr Kekatos nodded his head in approval.
87    McInerney J said that he found the evidence of Mr Allen and Mr Mourtekis as “too incredulous [sic] to be accepted”, and said, “I have no hesitation in concluding that the defendant went along to act as a legal adviser and that whilst there he acted as such. There is no other rational hypothesis.”
88    Mr Kekatos again submitted that the evidence fell short of establishing that he acted as a solicitor, because there was no evidence that at the interviews he did or said anything by which he advised, represented, or otherwise acted as a solicitor on behalf of either Mr Allen or Mr Mourtekis. The rejection of the evidence of Messrs Allen and Mourtekis, it was said, did not establish the contrary of their evidence (Steinberg v Federal Commissioner of Taxation was again cited).
89    Mr Allen conceded that he may have told the police that he would not be interviewed unless Mr Kekatos was present, and that Mr Kekatos was little more than an acquaintance, someone whom he had not seen for a long time. His Honour was entitled to reject the evidence that Mr Kekatos was asked to be present only as a friend. Mr Mourtekis said that he told the police that he would not be interviewed unless Mr Kekatos was present. That left Mr Kekatos present at interviews at the level 2 offices, at the requests of Messrs Allen and Mourtekis, at appointments he arranged, as the apparent representative of the firm practising at those offices, and at the least indicating approval to the taking of statements. There was less additional evidence than in the case of the Savic police interview, but the circumstances strongly suggested that he was present as legal adviser. The assertions of Messrs Allen and Mourtekis that he was present as a friend were not accepted, and Mr Kekatos said that he could not recall the Allen interview. His Honour was entitled to conclude, as he did, that Mr Kekatos was present as legal adviser and acted as such.

The Palasty conversation submission

90    Mr Palasty’s building company entered into a contract with a tiling company. Mr Palasty dealt with a person he knew as Mr Robert Nasser. They were in dispute. Mr Palasty gave a termination notice to Mr Nasser. The question was whether Mr Palasty received a telephone call from Mr Kekatos in which Mr Kekatos said that he was “Kekatos solicitor representing Mr Nasser …” and that Mr Nasser was with him, before going on to deal with the subject matter of the dispute. Mr Palasty gave evidence that this was said; Mr Kekatos denied that it was said.
91    Although not in so many words, his Honour accepted the evidence of Mr Palasty: he said, “I see no reason to reject Mr Palasty’s evidence, particularly having regard to the view which I have formed concerning the defendant’s activities”. From the judgment, his reasons for doing so included that Mr Palasty remained firm under strong cross-examination and said that he would not have spoken to Mr Kekatos unless Mr Kekatos had said he was a solicitor; that Mr Nasser was not called and his Honour assumed that Mr Nasser’s evidence would not have assisted Mr Kekatos’ case and said that he could more comfortably draw adverse inferences against Mr Kekatos; that something said by Mr Kekatos during the telephone call when dealing with the subject matter of the dispute was agreed by Mr Kekatos to have been said; and that Mr Palasty’s evidence included evidence of a later meeting with Mr Kekatos and a Mr Ceh, which Mr Kekatos agreed had occurred, in which Mr Palasty asked whether Mr Kekatos was a solicitor and was told, “Well, I am giving him [Mr Ceh] advice, aren’t I”.
92    There were a number of limbs to Mr Kekatos’ submission.
93    First, it was said that his Honour was in error in saying that he assumed that Mr Nasser’s evidence would not have assisted Mr Kekatos’ case, and could more comfortably draw adverse inferences against Mr Kekatos. According to the submission, the error was because the question was not whether Mr Kekatos acted as Mr Nasser’s solicitor, but whether Mr Kekatos said the words alleged. When according to Mr Palasty’s evidence Mr Kekatos said that Mr Nasser was with him when he telephoned, the distinction does not seem significant. In my opinion, his Honour was entitled to proceed on the basis that Mr Nasser’s evidence as to what was said would not have assisted Mr Kekatos.
94    Secondly, it was said that when his Honour stated that he saw no reason to reject Mr Palasty’s evidence “particularly having regard to the view which I have formed concerning the defendant’s activities”, his finding was flawed by an unduly unfavourable view of Mr Kekatos’ activities the subject of earlier submissions. I do not agree. It was appropriate for his Honour to consider the evidence as a whole, evaluating Mr Kekatos’ contrary evidence as to the telephone conversation of Mr Palasty and the later meeting involving Mr Ceh, and it was open to his Honour to find assistance in overall regard to the evidence of Mr Kekatos’ activities.
95    Thirdly, it was said that the consideration of the later meeting with Mr Kekatos and Mr Ceh had only peripheral relevance to the Palasty conversation. It had relevance, in that Mr Palasty’s direct question to Mr Kekatos was connected with the earlier statement that Mr Kekatos was a solicitor. When Mr Palasty met Mr Ceh, Mr Kekatos was with Mr Ceh. Mr Palasty said he would speak to Mr Ceh “but not with your solicitor Kekatos”. Mr Kekatos denied that he was Mr Ceh’s solicitor, and Mr Palasty rejected the denial. He and Mr Ceh spoke apart from Mr Kekatos. When they rejoined Mr Kekatos, Mr Kekatos began to take part in the conversation. Mr Palasty repeated that he did not want Mr Kekatos involved, saying “I don’t have my solicitor here”, and then asked, “Are you a solicitor or not” and received the reply earlier set out. In asking this, Mr Palasty said, he was seeking confirmation of what he had been told in the earlier telephone conversation. I do not think that there was any error in paying regard to the later exchange.
96    Finally, in concluding his discussion of the later meeting with Mr Kekatos and Mr Ceh his Honour said that Mr Kekatos “would have me believe that he [Mr Kekatos] just went along as a friend and did not charge a fee”. His Honour found this evidence unacceptable. It was said that the dealings between Mr Palasty, Mr Kekatos and Mr Ceh were not within the particularised allegations, and that his Honour should not have given them any weight. In the manner I have explained, they were relevant to the particularised allegations, and no objection was taken when the evidence of the dealings was led; there was extensive cross-examination on the evidence. There was no error in having regard to them.

The Tandoori Rasoi restaurant transaction submission

97    Mr Kumar negotiated to purchase the restaurant from Mr Grewal. The evidence of Mr Kumar, if accepted, thoroughly supported that Mr Kekatos acted as solicitor for Mr Grewal and held himself out to Mr Kumar to be a solicitor.
98    His Honour gave an account of Mr Kumar’s evidence, in the course of which he found that some writing in the contract for sale was in the same hand as the writing on the guarantee and certificate in the Aquilina guarantee transaction and was written by Mr Kekatos, and that the evidence that Mr Kekatos handed Mr Kumar a transfer of lease rang true because the document was an annexure to Mr Kumar’s affidavit. The transfer of lease was a transfer to Mr Grewal dated 2 May 1995. The signatures of the transferors were witnessed by Mr Kekatos, with the address of the Level 2 offices. The signature of the transferee was apparently witnessed by Miss Bouzanis.
99    His Honour then said -

“Whilst some criticism can be levelled at the evidence of this witness which was not altogether satisfactory in some respects, bearing in mind a letter he wrote to The Law Society, in the ultimate I accept his evidence is in accord with the impression I have gained about the activities of the defendant. Mr Kumar does not have a perfect knowledge of the English language and some of the so-called discrepancies, I believe, are attributable to that fact.

Mr Grewal is a friend and a business associate. He was unable to satisfactorily explain the effect of the CPI on the rental of the premises. He said he spoke to ‘George’ (the defendant) ‘whom I speak to regularly on the phone and he said he was going to be in the city’. He suggested they should meet with Mr Kumar at the restaurant. He came along to the restaurant. The defendant had also been involved in the transfer of lease. I have no trouble in accepting the version (in relevant aspects) of Mr Kumar.”

100    Again there were a number of limbs to Mr Kekatos’s submission.
101    First, it was said that his Honour did not give an account of the competing versions of events in the evidence of Mr Kekatos and Mr Grewal, or give any greater explanation than I have set out for his acceptance of Mr Kumar’s version. It is plain, however, that his Honour paid regard to the differing versions. He began his discussion of the transaction with the statement that the matter was hotly disputed by the defendant”, and acknowledged that Mr Kumar’s evidence was not altogether satisfactory. Mr Kekatos had denied the writing in the contract of sale, and had denied giving a transfer of lease to Mr Kumar, and his Honour’s findings in those respects provided support for acceptance of Mr Kumar’s version of events. I consider that it was open to his Honour to express his acceptance of Mr Kumar’s version of events in the manner he did.
102    Secondly, it was said that his Honour failed to advert to the strong animosity which Mr Kumar must have borne to both Mr Kekatos and Mr Grewal in the light of later events. Mr Kumar was later evicted from the restaurant he thought he had bought. There is no reason to think that his Honour failed to pay regard to this in evaluating the competing versions of events.
103    Thirdly, it was said that his Honour failed to advert to the unlikelihood of Mr Kekatos describing himself, or allowing himself to be described, as a solicitor, on the many occasions on which he did so on the version of events given by Mr Kumar. This was particularly so, it was said, if (as his Honour found) Mr Kekatos was an intelligent and shrewd individual. According to Mr Kumar, Mr Grewal introduced him to “George Kekatos, my solicitor”; in the discussion over the contract for sale Mr Kekatos said that there was nothing wrong with it and, “I am a solicitor, you know me now, Sam, if there is any problem you can come and see me”; when Mr Kumar expressed some concern Mr Kekatos said, “I have in my firm another solicitor, Patricia Bouzanis, and she can also explain to you the contract”; and Mr Kekatos introduced a woman to Mr Kumar as “Patricia Bouzanis, a solicitor in my firm”. I do not see this as such unlikely conduct from a person Mr Kekatos’ position that his Honour could not or should not have accepted Mr Kumar’s version of events.
104    Finally, and perhaps inconsistently with the submission the subject of the preceding paragraph, it was said that “in its totality” the evidence did not disclose that Mr Kekatos acted as a solicitor for Mr Grewal or held himself out to be a solicitor to Mr Kumar. It is sufficient to refer to that part of the evidence of Mr Kumar summarised in the preceding paragraph, and to repeat that, if the evidence of Mr Kumar was accepted, the conduct alleged in the relevant particulars was amply made out.

The Tambouz debt transaction submission

105    His Honour described this transaction as “a peripheral matter”, but said that it “does confirm in my mind that from time to time the defendant was holding himself out as a solicitor and purporting to act as such”.
106    Mr Tambouz’s tiling company owed money to Mr Gaitanos’ tile importing and wholesaling company Atlas Concorde Pty Ltd. The tiling company was the same company as the tiling company in the Palasty conversation, and it seems that Mr Nasser Tambouz was the person Mr Palasty knew as Mr Nasser. His Honour’s findings were -

“In January 1997, Mr Gaitanos received a cheque for $5,680 which was dishonoured. On instructions from Mr Tambouz, Mr Gaitanos said, he telephoned the defendant and told him about the cheque being dishonoured. He said to the defendant, ‘You’re his lawyer and he said to ring you because you hold some money of his and you are going to pay me on his behalf’. The defendant told Mr Gaitanos to come to Level 2, 22 Hunter Street, Parramatta to pick up the cheque. When Mr Gaitanos spoke to the defendant he was told that the cheque had not been cleared but the defendant indicated that he had put Mr Tambouz’ cheque into his trust account.

There was a great deal of cross-examination about the fact that the telephone conversation occurred on 6 February 1997, but I accept it was earlier.”

107    McInerney J did not say that the findings meant that the contraventions as particularised had been established. The contraventions alleged involved Mr Kekatos acting as a solicitor (s 48B(1)), in brief holding himself out as a person qualified to act as a solicitor (s 48C(2)), and falsely pretending to be qualified to act as a solicitor (s 48C(1)). The confirmation to which his Honour referred probably carried with it the conclusion that Mr Kekatos had acted as a solicitor and held himself out as a solicitor.
108    There was a little more in Mr Gaitanos’ evidence than found by his Honour. When Mr Gaitanos first went to the Level 2 offices to pick up the cheque he went to the solicitor’s offices, Suite 2, and Mr Kekatos came from an office in Suite 2 to meet him and took him into the boardroom in Suite 2. Mr Gaitanos attended on a later occasion to pick up the cheque (which he never obtained), and again went into Suite 2 and was met by Mr Kekatos from an office in Suite 2. This could only go against the working in the office submission. But as to the Tambouz debt transaction submission, I consider that the submission that the evidence was insufficient to make out the contraventions as particularised should be accepted. Holding money and disbursing it on behalf of someone else is an activity often performed by persons who are not solicitors, and that Mr Kekatos acted as banker for Mr Tambouz in that way did not mean that he acted as a solicitor. There was evidence that Mr Kekatos did not have a trust account in his consulting business at the time of the hearing, but the position in January 1997 was not established. At most it could be said that Mr Kekatos acknowledged by his responses to Mr Gaitanos that he was Mr Tambouz’ lawyer, but the circumstances did not plainly call for a denial of the description and I do not think there was sufficient for the contravention particularised in para 17.

General

109 McInerney J did not spell out in relation to all the contraventions alleged how the conduct he found to have occurred brought contravention of the provision or provisions in question. His overall conclusion was “that [Mr Kekatos] has acted as a solicitor on occasions; and that he has told persons that he was a solicitor”. It is plain, however, that his Honour held that Mr Kekatos had acted in contravention of the provisions of Pt 3A of the Act in the manner particularised in the paragraphs other than paras 9 and 15.
110 I respectfully differ from his Honour as to paras 16, 17 and 18, As to the other paragraphs, however, in my opinion no ground has been made out for appellate intervention. As to the Acquilina guarantee transaction, which was at a time when Mr Kekatos did not have a practising certificate although before his name was removed from the Roll, he acted as a solicitor contrary to s 48B(1) of the Act and did general legal work for a fee contrary to s 48E(2) of the Act. As to the Savic police interview and the Allen/Mourtekis police interview, he acted as a solicitor contrary to s 48B(1) of the Act. As to the Tandoori Rasoi restaurant transaction, he acted as a solicitor contrary to s 48B(1) of the Act and held himself out as qualified to act as a solicitor contrary to s 48C(2) of the Act. As to the Palasty conversation, he falsely pretended to be qualified to act as a solicitor contrary to s 48C(1) of the Act and held himself out as qualified to act as a solicitor contrary to s 48C(2) of the Act. I continue to use a summary of the alternatives in s 48C(2), as the collocation of words particularly applicable was not the subject of submissions.
111    Although without the contraventions particularised in paras 16, 17 and 18 to underpin it, the declaration made by McInerney J should stand. The appeal fails, and in my opinion Mr Kekatos should pay the Law Society’s costs notwithstanding success as to the peripheral Tambouz debt transaction.

Orders

112 I propose the following orders:

(1) Time for filing a summons for leave to appeal be extended up to and including 2 October 1998.
(2) Grant leave to appeal.
(3) Dismiss the appeal with costs.
__________

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Citations

Kekatos v The Council of the Law Society of New South Wales [1999] NSWCA 288

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Cited Sections

CITATION:	Kekatos v The Council of the Law Society of New South Wales [1999] NSWCA 288
FILE NUMBER(S):	CA 40755/98
HEARING DATE(S):	11 May 1999
JUDGMENT DATE:	26 August 1999
PARTIES :	Appellant - George Kekatos Respondent - The Council of the Law Society of New South Wales
JUDGMENT OF:	Handley JA at 1; Powell JA at 2; Giles JA at 7

LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S) :	CLD 10305/97
LOWER COURT JUDICIAL OFFICER:	McInerney J

COUNSEL:	Appellant - G A Palmer QC & A C Casselden Respondent - L P Robberds QC & I M Khan
SOLICITORS:	Appellant - Smits Leslie, Gordon Respondent - Garry J Still, Law Society of NSW
CATCHWORDS:	SOLICITORS - not holding practising certificate - holding out to be solicitor and acting as solicitor - contraventions of Pt 3A Legal Profession Act 1987 - whether because of interventions in hearing and findings and reasons trial was unfair - whether Jones v Dunkel inference open - whether contraventions established.
DECISION:	(1) Time for filing a summons for leave to appeal be extended up to and including 2 October 1998; (2) Grant leave to appeal; (3) Dismiss the appeal with costs.